Citation NR: 9735033
Decision Date: 10/16/97 Archive Date: 10/24/97
DOCKET NO. 94-23 670 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Albuquerque, New Mexico
THE ISSUE
Entitlement to service connection for residuals of shrapnel
wounds of the left leg.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Alberto H. Zapata, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1956 to
November 1957.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a November 1993 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Albuquerque, New Mexico.
REMAND
This case was previously remanded by the Board for further
development in May 1996. In that remand, pertinent
development included obtaining a VA medical opinion
addressing whether the veteran manifests shrapnel wounds of
the left leg and “whether it is at least as likely as not
that any current left leg disability is causally related to
the veteran’s military service.” Further, the examiner was
requested to express an opinion with respect to whether the
examiner’s medical conclusions were based on the record or
history provided by the veteran.
Review of the report resulting from the requested VA
examination, which was performed in September 1996, reveals
that the examiner diagnosed symptomatic residuals of shell
fragment wounds of the left lower limb. This diagnosis
corresponds to the medical history provided by the veteran at
the examination. The diagnosis is not corroborated by x-ray
findings of retained fragments or enhanced by medical opinion
addressing whether the veteran’s left leg wounds are
consistent with a close-range grenade explosion.
Because there are no service medical records available in
this case which could serve to substantiate the veteran’s
assertions, the Board is of the opinion that before a final
appellate determination can be made in this case, further
medical opinion addressing the above concerns should be
solicited and the veteran should be given the opportunity to
supply corroborating statements from service comrades who may
have witnessed the alleged grenade injury or been involved in
the treatment of the veteran. See Dixon v. Derwinski, 3 Vet.
App. 261, 263 (1992).
In light of these circumstances, the Board is of the opinion
that further RO actions are warranted. Accordingly, the case
is REMANDED to the RO for the following actions:
1. The RO should contact the veteran and
request that he provide the names,
addresses and approximate dates of
treatment for all VA and non-VA health
care providers who have treated him for
residuals of his shrapnel wounds of the
left leg since his separation from
service. With any necessary
authorization from the veteran, the RO
should attempt to obtain copies of
pertinent treatment records identified by
the veteran which are not currently of
record and associate them with the claims
folder.
2. The RO should contact the veteran
and request that he submit additional
evidence in support of his claim for
service connection for residuals of
shrapnel wounds of the left leg and
request that he clarify the specific
nature of his complaints and symptoms
with respect to his left leg injury
residuals. Such evidence requested
should include statements from fellow
soldiers and any other pertinent sources
of evidence delineated in the VA
Adjudication Procedure Manual (M21-1),
Part III, paras. 4.22 and 4.23, Change
41 (July 12, 1995). The RO should
inform the veteran of the importance of
providing alternate sources of
information with respect to the specific
dates during which he was treated for
his grenade injury and that the lack of
such information may lead to the denial
of his claim.
3. The RO should attempt to obtain the
veteran’s complete service
administrative records, including his
201 file, and associate this material
with the record.
4. The RO should then arrange for the
veteran to undergo a comprehensive VA
orthopedic examination conducted by a
board-certified orthopedist, who has not
previously examined the veteran, if
available, to determine the etiology,
nature and extent of the residuals of
wounds of the left leg. All indicated
studies, including, but not limited to,
x-rays and range of motion studies in
degrees, should be performed, and all
findings should be set forth in detail.
The claims file and a copy of this REMAND
must be made available to the examiner
prior to the requested examination. The
examiner is requested to indicate in
his/her report that review of both the
claims folder and the information
contained in this remand was conducted.
All clinical manifestations of any left
leg injury residuals should be explained
in detail, including the appearance of
any scars consistent with the alleged
grenade injury. The examiner is
requested to review the claims folder in
detail and provide an opinion as to
whether it is at least as likely as not
that any current left leg disability is
consistent with residuals of shrapnel
wounds stemming from a grenade explosion.
In this regard the examiner is requested
to specifically address all objective
clinical signs, such as retained shell
fragment shown through x-rays, and/or
that current symptoms constitute grenade
explosion residuals. If the examiner’s
diagnosis is based solely upon the
history provided by the veteran and not
amenable to independent clinical
corroboration, the examiner is requested
to make this fact clear in his/her
opinion. The rationale for any opinion
expressed should be fully explained.
5. The RO should review the examination
report resulting from the above-requested
development and assess compliance with
the above instructions. If the RO
determines that the examination report
did not adequately address the
instructions contained in this REMAND,
the report should be returned to the
examiner for corrective action.
6. Then, in light of any additional
evidence obtained pursuant to the
requested development, the RO should
readjudicate the issue of entitlement to
service connection for residuals of
shrapnel wounds of the left leg.
7. If the benefit sought on appeal is
not granted to the veteran’s
satisfaction, the RO should issue a
supplemental statement of the case, and
the veteran and his representative should
be provided with a reasonable opportunity
to respond.
Thereafter, the case should be returned to the Board for
further consideration, if otherwise in order. By this
REMAND, the Board intimates no opinion as to the final
outcome warranted. No action is required of the veteran
until he is otherwise notified by the RO.
U. R. POWELL
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
- 2 -